A - Care Of Taylor Kelly V. Steven House
| Jurisdiction | Scotland |
| Judge | Sheriff Richard Hamilton McFarlane |
| Court | Sheriff Court |
| Date | 23 April 2012 |
| Published date | 22 November 2012 |
SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
CASE REF No B490/11
JUDGMENT
OF
RICHARD HAMILTON McFARLANE
PART-TIME SHERIFF SITTING AT GLASGOW
IN THE
SUMMARY APPLICATION
BY
A, c/o TAYLOR & KELLY, Court Solicitors, 3 Main Street, Coatbridge
APPELLANT
AGAINST
STEVEN HOUSE, QPM, Chief Constable of Strathclyde Police, Pitt Street, Glasgow
RESPONDENT
Act: Professor Anthony J Kelly, solicitor, Coatbridge
Alt: Mrs Rhona Stannage, solicitor, Glasgow
GLASGOW: 23rd April 2012
The Sheriff having resumed consideration of the cause finds that (a) the summary application has not been timeously lodged as required in terms of Section 88G of the Sexual Offences Act 2003 as amended and (b) there is no power to exercise discretion to relieve the appellant from such failure; SUSTAINS the first plea in law for the respondent; DISMISSES the application as being incompetent; ASSIGNS a hearing on expenses on a date to be afterwards fixed.
NOTE:
Introduction
- This is an appeal by way of summary application whereby the appellant appeals the decision of the respondent dated 21st January 2011 to make him the subject of a Notification Continuation Order in terms of Section 88D of the Sexual Offences Act 2003 ("the 2003 Act") as amended by the Sexual Offences Act 2003 (Remedial)(Scotland) Order 2010 ("the 2010 Order"). The appeal is purportedly made under Section 88G of the 2003 Act.
- The respondent's first plea in law is to the effect that the application is time-barred and should be dismissed.
- The question of time-bar was debated before me on 13th February 2012. At the conclusion of the debate I made avizandum to consider the submissions for the parties and to issue a written decision.
Background
- With reference to the Record it appears that on 22nd December 1993 the appellant, then aged 14, was convicted at the High Court in Airdrie of two charges of assault with intent to ravish; theft and malicious damage. In due course he was sentenced to four years detention backdated to 10th September 1993. The sentence expired on 9th September 1997.
- In terms of Section 10(5) of Part 1 of the Sex Offenders Act 1997 ("the 1997 Act"), as the appellant had been convicted of a sexual offence he became subject to the notification requirements of that Act for an indefinite period. The 1997 Act was subsequently repealed. The appellant then became subject to the (new) notification requirements in terms of Section 81 of the 2003 Act, again, for an indefinite period.
- In an earlier process the appellant successfully challenged the indefinite notification period as being incompatible with his Convention Rights. As a consequence of this, on 25th October 2010 the Scottish Ministers made the Sexual Offences Act 2003 (Remedial)(Scotland) Order 2010 ("the 2010 Order") which was repealed and replaced by the Sexual Offences Act 2003 (Remedial) (Scotland) Order 2011 ("the 2011 Order") on 27th January 2011. Both orders provided a mechanism for the periodic review of the indefinite notification requirements.
- On 21st January 2011 the respondent made a Notification Continuation Order in respect of the appellant in terms of Section 88D of the 2003 Act.
- In terms of either the 2010 Order or the 2011 Order the appellant may appeal that decision within 21 days.
- This summary application was warranted for service on 22nd February 2011. A copy of the summary application was served on the respondent that day.
- The legislative provisions anent notification orders and their appeal appear in sections 88A - 88I of the 2003 Act - these sections were inserted into the 2003 Act by the 2010 Order - they came into effect on 25th October 2010. The 2011 Order repealed and replaced the 2010 Order. It also amended the 2003 Act by inserting sections 88A - 88I but in slightly different terms. As this appeal is taken against a decision dated 21st January 2011 it is governed by the 2003 Act as amended by the 2010 Order.
- The appellant avers that the notification continuation order was made in terms of section 88C of the 2003 Act - this is admitted by the respondent. Parties are agreed reference should have been made to section 88D
The legislative framework
- The relevant parts of the 2003 Act (as amended) for the purposes of this appeal are as follows:-
88A review of indefinite notification requirements: applicable persons
(1) Sections 88B to 88H apply to -
(a) a person, on or after the date on which this section comes into force, becomes subject to the notification requirements of this Part for an indefinite period by virtue of section 80(1) or a notification order made under section 97(5); and
(b) a person who immediately before that date was subject to the notification requirements of this Part for an indefinite period by virtue of-
(i) section 80(1)
(ii) section 81(1); or
(iii) a notification order made under section 97(5).
(2) A person who falls within subsection (1)(a) or (b) is referred to in sections 88B to 88G as a "relevant sex offender".
88B Review of indefinite notification requirements: date of discharge and further date of discharge
(1) For the purposes of this part, the date of discharge is-
(a)..................
(b) where the relevant sex offender was aged under 18 on the relevant date, the date falling 8 years after that date...........
(2) Where a notification continuation order made under this Part has effect in respect of the relevant sex offender, for the purposes of this Part the further date of discharge is the date of expiry of a fixed period specified in that order...............
(3) In this section and section 88D "relevant date" -
(a) in relation to a relevant sex offender who is subject to the notification requirements of this Part for an indefinite period by virtue of section 80(1) or 81(1), has the meaning applicable to that sex offender specified in section 82(6)(a) to (c);
(b) in relation to a relevant sex offender who is subject to the notification requirements of this Part for an indefinite period by virtue of a notification order made under section 97(5), has the meaning applicable to that offender specified in section 98(2).
88C Review of the indefinite notification requirements: procedure and grounds
(1) The relevant chief constable must no later than the date of discharge-
(a) make a notification continuation order in respect of the relevant sex offender; or
(b) notify the relevant sex offender that the offender ceases to be subject to the notification requirements of this Part on the date of discharge.
(2) A notification continuation order is an order making the relevant sex offender subject to the notification requirements of this Part for a fixed period of not more than 15 years from the date which would, but for the order, have been the date of discharge.
(3) The relevant chief constable may make a notification continuation order only if satisfied, on the balance of probabilities, that the relevant sex offender poses a risk of sexual harm to the public, or any particular members of the public, in the United kingdom..........
(8) In this section and sections 88D to 88G, "relevant chief constable" means the chief constable of the police force for the police area in which the relevant sex offender resides.
88D Review of indefinite notification requirement, transitional arrangements
(1) This section applies to a relevant sex offender falling within sections 88A(1)(b)(ii) if the person -
(a) was aged under 18 on the relevant date;
(b) after disregarding any time referred to in subsection (2), has been subject to the notification requirements of Part 1 of the Sex Offenders Act 1997 and this Part for a total period of at least eight years on the date on which this section comes into force...........
(3) The relevant chief constable must no later than the applicable date-
(a) make a notification continuation order in respect of the relevant sex offender; or
(b) notify the relevant sex offender that the offender ceases to be subject to the notification requirements of this Part on the applicable date.
(4) Section 88C(2) to (8) applies to this section, but a reference to the date of discharge is to be read as a reference to the applicable date.
(5) In this section, the "applicable date" is the date falling 3 months after the date on which this section comes into force.
88E Review of indefinite notification requirements: further review
(1) Where a notification continuation order has been made, the relevant chief constable must no later than the further date of discharge-
(a) make another notification continuation order in respect of the relevant sex offender; or
(b) notify the relevant sex offender that the offender ceases to be subject to the notification requirements of this Part on the further date of discharge.
(2) Section 88C(2) to (8) apply in relation to this section, but a reference to the date of discharge is to be read as a reference to the further date of discharge............
88G Review of indefinite notification requirements: appeals
(1) The decision of the relevant chief constable -
(a) to make a notification continuation order; and
(b) setting the fixed period of the notification continuation order,
may be appealed by the relevant sex offender within 21 days after the date specified in subsection (3).
(2) An appeal under subsection (1) is to be made by summary application to the sheriff in whose jurisdiction the relevant sex offender resides.
(3) The date is-
where the appeal is brought against the decision of the relevant chief constable made under section 88C(1), the date of discharge;
(a) where the appeal is brought against the decision of the relevant chief constable made under section 88D(1), the applicable date; or
(b) where the appeal is brought against the decision of the relevant chief constable made under section 88E(1), the further date of discharge........................"
Authorities
- The following authorities were referred to:-
- Macphail : Sheriff Court Practice (3rd Edition,)
...
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